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Nod And Reconsideration


kate7772

Question

DAV told my husband today that he needs to file his NOD soon as the one year mark is coming up on Sept 19. He currently has a reconsideration in that we had hoped would be decided by now. We were waiting as long as possible so as not to mess up the reconsideration. DAV said that even after filing the NOD, the reconsideration would continue and it wouldn't have to go into that 2 year or so that is common for a DRO.

That's not the impression I have gotten from reading here. Is DAV hopefully right about this?

There are some contentions that he did not put into the reconsideration due to waiting on an IMO so they will go into a DRO. So, can he have a reconsideration active on some things and a DRO on others at the same time while still keeping the original date on the ones in the reconsideration due to filing the NOD on time? All contentions were originally on the same claim.

Thanks

Kate

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Kate7772: Please, DO NOT LET THE OPPORTUNITY TO FILE THE NOD EXPIRE!!! It is the only way to keep your claim alive! I would advise that you file a NOD Immediately, yourself, send it Certified US Mail Return Receipt. I waited 11 mos to file my NOD back in 2010. Didn't have Reconsideration or anything else pending, just procrastination on my part. In my defense, I never heard from the VSO that filed the original claim after I left his office for the original claim in 07/2008. I currently help a number of Nam Vets,and my experience indicates that the only way you can be absolutely 100% Sure that your NOD has been filed when your get to the 11th Hour of the filing deadline is, DO IT Yourself! You can't afford to have a vso file your NOD requesting a DRO Review. and not specify that you are also requesting a personal hearing.

I would suggest that you immediately complete a VA Statement in Support Of Claim, available on-line. This is how I did mine in 2010, just for an idea. There is no official VA NOD form, even just writing it on regular paper is enough, state the following.

1. Please accept this as my formal notice of disagreement regarding the VA Claim Decision Dated --/--/----. note: this al thats necessary to put the VA on official notice regarding your NOD. You don't have to include the following but I did.

2. I stated that I was requesting a DRO Review with a Personal Hearing. I included the request for the "DRO with Hearing request" on every piece of correspondence regarding the NOD from that point on.

3. I specifically told the VA what Issues I disagreed with as well as what they awarded that I agreed with.

Sign It, Send It CERT-Mail return receipt. Or better yet, if possible, hand deliver it to the VA Regional Office. The Front desk will date stamp it and make a copy for you. At this point, better safe than sorry and more is better, as far as I'm concerned. Get it filed NOW, then we can discuss the "NEW Evidence" that you must provide to be successful with the DRO Review.

Good Luck Semper Fi

Gastone

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Kate7772: Please, DO NOT LET THE OPPORTUNITY TO FILE THE NOD EXPIRE!!! It is the only way to keep your claim alive! I would advise that you file a NOD Immediately, yourself, send it Certified US Mail Return Receipt. I waited 11 mos to file my NOD back in 2010. Didn't have Reconsideration or anything else pending, just procrastination on my part. In my defense, I never heard from the VSO that filed the original claim after I left his office for the original claim in 07/2008. I currently help a number of Nam Vets,and my experience indicates that the only way you can be absolutely 100% Sure that your NOD has been filed when your get to the 11th Hour of the filing deadline is, DO IT Yourself! You can't afford to have a vso file your NOD requesting a DRO Review. and not specify that you are also requesting a personal hearing.

I would suggest that you immediately complete a VA Statement in Support Of Claim, available on-line. This is how I did mine in 2010, just for an idea. There is no official VA NOD form, even just writing it on regular paper is enough, state the following.

1. Please accept this as my formal notice of disagreement regarding the VA Claim Decision Dated --/--/----. note: this al thats necessary to put the VA on official notice regarding your NOD. You don't have to include the following but I did.

2. I stated that I was requesting a DRO Review with a Personal Hearing. I included the request for the "DRO with Hearing request" on every piece of correspondence regarding the NOD from that point on.

3. I specifically told the VA what Issues I disagreed with as well as what they awarded that I agreed with.

Sign It, Send It CERT-Mail return receipt. Or better yet, if possible, hand deliver it to the VA Regional Office. The Front desk will date stamp it and make a copy for you. At this point, better safe than sorry and more is better, as far as I'm concerned. Get it filed NOW, then we can discuss the "NEW Evidence" that you must provide to be successful with the DRO Review.

Good Luck Semper Fi

Gastone

Does this cancel out the reconsideration or will it continue. It should be so close.

Also, do I not need to send in my new evidence(diagnosis, IMO?). Actually, all evidence will be new since we sent in absolutely nothing before.

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I agree , send that NOD form in ASAP. There is a new form for NODs but this form is not mandatory



And absolutely send in any evidence such as a IMO, diagnosis ( is this a new diagnosis within the IMO) and EVERYTHING you feel will support the claim you are appealing.


In my opinion the NOD is the first avenue of attack and should be prepared in that way. Tell them why they are wrong and refer to and enclose with the NOD any evidence that shows they are wrong, such as IMO etc etc.

"Actually, all evidence will be new since we sent in absolutely nothing before. "

You mean you didnt send in any evidence with the reconsideration?????

If so, in my opinion that request will fail anyhow so best to get that NOD in on time.

" DAV said that even after filing the NOD, the reconsideration would continue and it wouldn't have to go into that 2 year or so that is common for a DRO.
That's not the impression I have gotten from reading here. Is DAV hopefully right about this?"

I guess he means you could request a DRO review or something, but if there was no evidence sent in with the request I dont see how that will help


Did he have the C & Ps yet for PTSD and the HL claim?

Some time ago I was shocked that you had stated he didnt even have a C & P exam and was denied but without seeing the actual decisions, it is hard to even guess.

Do you have the C & P results? If they did do a C & P exam.

Does the IMO doctor have those C & P results?





I am concerned about this:

"There are some contentions that he did not put into the reconsideration due to waiting on an IMO so they will go into a DRO. So, can he have a reconsideration active on some things and a DRO on others at the same time while still keeping the original date on the ones in the reconsideration due to filing the NOD on time? All contentions were originally on the same claim."

The reconsideration request must be shaped to the denial and also the NOD must be shaped that way as well.

What specific denial was the reconsideration request filed on?

Have you obtained an IMO and for what claim? Did the IMO follow the IMO criteria here at hadit?

I am completely confused by all of these issues ,

but sure not confused about the need to file the NOD ASAP, as Gastone said, with any evidence that supports the claim.





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I agree , send that NOD form in ASAP. There is a new form for NODs but this form is not mandatory

And absolutely send in any evidence such as a IMO, diagnosis ( is this a new diagnosis within the IMO) and EVERYTHING you feel will support the claim you are appealing.

In my opinion the NOD is the first avenue of attack and should be prepared in that way. Tell them why they are wrong and refer to and enclose with the NOD any evidence that shows they are wrong, such as IMO etc etc.

"Actually, all evidence will be new since we sent in absolutely nothing before. "

You mean you didnt send in any evidence with the reconsideration?????

I meant no evidence was sent with the original claim. We sent evidence with the reconsideration (new PTSD diagnosis, stressor and letters.)

If so, in my opinion that request will fail anyhow so best to get that NOD in on time.

" DAV said that even after filing the NOD, the reconsideration would continue and it wouldn't have to go into that 2 year or so that is common for a DRO.

That's not the impression I have gotten from reading here. Is DAV hopefully right about this?"

I guess he means you could request a DRO review or something, but if there was no evidence sent in with the request I dont see how that will help

Did he have the C & Ps yet for PTSD and the HL claim?

C&Ps have apparently been requested as of Aug 9 but no appointments yet.

Some time ago I was shocked that you had stated he didn't even have a C & P exam and was denied but without seeing the actual decisions, it is hard to even guess.

I would try to include the original denial but can't figure out how to attach. Can you explain how? The VA doc that gave the opinion for the denial just reviewed the records.

Do you have the C & P results? If they did do a C & P exam.

Does the IMO doctor have those C & P results?

I am concerned about this:

"There are some contentions that he did not put into the reconsideration due to waiting on an IMO so they will go into a DRO. So, can he have a reconsideration active on some things and a DRO on others at the same time while still keeping the original date on the ones in the reconsideration due to filing the NOD on time? All contentions were originally on the same claim."

The kidney claim was not done as a reconsideration because we were waiting to get an IMO.

The reconsideration request must be shaped to the denial and also the NOD must be shaped that way as well.

What specific denial was the reconsideration request filed on?

The denial was on hearing, tinnitus and anxiety, nervousness, irritability which has now been diagnosed as PTSD.

Have you obtained an IMO and for what claim? Did the IMO follow the IMO criteria here at hadit?

Dr. Bash did the IMO. He asked that I check it over for errors and there were several items I had questions on (see my post on the forums under IMOs.) I have emailed him several times over the past couple weeks but he has not gotten back yet.

I am completely confused by all of these issues ,

but sure not confused about the need to file the NOD ASAP, as Gastone said, with any evidence that supports the claim.

My husband is actually considering just letting the reconsideration keep on and not filing the NOD due to time issues. He knows he would lose the original date of July 2011 and potentially a lot of back pay but he is not a young person and not doing well with his PTSD and even working the 16 hours a week he is doing now, has become increasingly difficult. Very stressful job and he is making many mistakes. I work at the same place and spend much of my day helping him and cheking for mistakes all while hoping no one notices. His PTSD is severe and depression also. At the end of each work day, he is a mess and truthfully I am not much better. He wonders if it would be better to just hope for a rating from the reconsideration so hopefully he wouldn't need to continue the job which is only making his symptoms worse. Quality of life.

No one can even tell us how the PTSD was filed. Ebenefits says the hearing and tinnitus was filed as a reconsideration and the PTSD was a new claim. This could be because it was originally filed as symptoms of anxiety, irritability, etc instead of PTSD. PTSD was only actually diagnosed in Jan 2014 so the back date may not apply anyway. DAV says all filed as reconsideration. Peggy, depending on who you speak with, says reconsideration one time and new another.

Thanks.

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Attachments:

Cover the C file number, name and address and then this is how I do it, I use the Microsoft t scanner and Camera Wizard in Accessories in my Start menu, and the scanner will take a picture of the doc, which you can name and then open or attach here. here.

You might have to use a different type of scan program on your PC.

I just scanned a booklet my daughter bought me on the local Bath VAMC. It was a farm hospital during the Civil War and is a beautiful VA facility. Then I used the Attach File thing with the Browse to the lower left of my post ,prior to posting it , opened my recent documents, found the document by name and then clicked on it on it popped up here as an attachment.

You can attach PDFs as well via Adobe.

post-868-0-54637600-1408646731_thumb.jpg

Edited by Berta (see edit history)
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Kate7772: Does Filing the NOD, cancel out your request for reconsideration of the original claim??? I really don't know, but more important I and You, should not care or worry about the Reconsideration! I'll give you my thoughts on the "Reconsideration" request later in this post. For now, your 1st and foremost mission, is to insure that you don't allow the claim denial decision to become final by missing the NOD filing, "Drop Dead, DEAD LINE!" File your NOD Today, remember CERT Mail Return Receipt!

As for "Reconsideration" of your original claim denial. If my memory serves, all your doing is requesting the same VRO that made the original decision, take another look at the exact same evidence that was available for his initial decision. The only way you get to add new evidence and have a more senior VA Rater look at the claim without giving deference to the original denial decision, is by Filing a TIMELY NOD requesting a DRO Review, preferably with a request for a personal Hearing. What do you think the odds are of the original rater, reviewing his original decision, and changing his opinion. He might, but I doubt it. Again I'm basing my opinions regarding "Reconsideration" on my last 3 years of appeals research, I could be bass ackward, don't think so. I don't think "Reconsideration" is even an official VA claim status. Don't take a chance, the CLOCK is TICKING. FILE THE NOD!!!!!

Semper Fi

Gastone

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Kate7772: Does Filing the NOD, cancel out your request for reconsideration of the original claim??? I really don't know, but more important I and You, should not care or worry about the Reconsideration! I'll give you my thoughts on the "Reconsideration" request later in this post. For now, your 1st and foremost mission, is to insure that you don't allow the claim denial decision to become final by missing the NOD filing, "Drop Dead, DEAD LINE!" File your NOD Today, remember CERT Mail Return Receipt!

As for "Reconsideration" of your original claim denial. If my memory serves, all your doing is requesting the same VRO that made the original decision, take another look at the exact same evidence that was available for his initial decision. The only way you get to add new evidence and have a more senior VA Rater look at the claim without giving deference to the original denial decision, is by Filing a TIMELY NOD requesting a DRO Review, preferably with a request for a personal Hearing. What do you think the odds are of the original rater, reviewing his original decision, and changing his opinion. He might, but I doubt it. Again I'm basing my opinions regarding "Reconsideration" on my last 3 years of appeals research, I could be bass ackward, don't think so. I don't think "Reconsideration" is even an official VA claim status. Don't take a chance, the CLOCK is TICKING. FILE THE NOD!!!!!

Our hope with the reconsideration being a different decision lies in the fact that there was absolutely zero evidence or diagnosis included in the original claim. The VSO was worthless and has since been fired. He only filed the claim saying basically "we are filing for this" Pretty much a one-liner or not much more. No reasons, supporting evidence or even a diagnosis. My husband only knew he was having horrible symptoms. he didn't even know it had a name (PTSD) until he went to the VA for medical help and was diagnosed.

Semper Fi

Gastone

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Attachments:

Cover the C file number, name and address and then this is how I do it, I use the Microsoft t scanner and Camera Wizard in Accessories in my Start menu, and the scanner will take a picture of the doc, which you can name and then open or attach here. here.

You might have to use a different type of scan program on your PC.

I just scanned a booklet my daughter bought me on the local Bath VAMC. It was a farm hospital during the Civil War and is a beautiful VA facility. Then I used the Attach File thing with the Browse to the lower left of my post ,prior to posting it , opened my recent documents, found the document by name and then clicked on it on it popped up here as an attachment.

You can attach PDFs as well via Adobe.

Berta,

I am trying to figure out how to convert the pdf to word so I can remove the personal info.

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Kate7772: About your " New Evidence." You will have plenty of time to get your evidence "DUCKS" in a row, after you put the VA on Notice by filing the timely NOD. You can send in the "NEW" evidence as it becomes available. VA Dr's records are already in his VAH Medical file. You can cherry pick the Important clinician notes and scan them to VA Statement in Support of Claim on line. Any and all other Medical Evidence, DBQ's etc can be addressed later. If its available, its up to You to get it and be sure the VA DRO has it before your hearing date.

About your "Hearing Date?" I just had mine 6/27/14, from NOD filed 09/2011. I think 2yrs is common, but don't really know. This was my 1st and only hearing. In the near future,take a couple of hrs to review the VA Comp claims Court decisions. You can link through VA.Gov. It will give you some idea as to VA Appeals Court, time frames. I think I read recently, DRO Hearings can get a decision, good or bad up to you and your quality of evidence, in a year or so less than the time it takes to get the VA Court to decide you case. With that said, you probably have at least 1 possibly 2 yrs before you get the Hearing Date Notification letter.

One of the long time Hadit regulars, maybe Berta, responded to 1 of my DRO posts recently. She said she has been to a number of DRO Hearings or been involved in some way. She might be able to give us both more info. I'll look back and see who she was and request info from her.

Semper Fi

Gastone

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I had a double DRO Review once ( no hearings) and my former vet rep messed that all up.

The Job Description of what a DRO is supposed to do is here somewhere under a search...I posted the M21-1MR link maybe a week or so ago.

Personally I would not waste my time anymore with hoping a DRO would review my evidence.I would rather be at the BVA no matter how long that takes.

I cant seem to add any more help except , as Gastone said, to file the NOD! Gastone made some serious points.....as to having much more time to gather evidence once the NOD is filed, because I dont think the recon request in this case has much merit and a request of this type should not be the sole focus regarding the claim.......

although I wish we could read the decision you are appealing,or the C & Ps or IMO, etc etc .... that NOD is far more important than trying to attach documents here at this point in time, in my opinion..because the deadline really isn't that far off.

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Submitting a NOD does not have any bearing the claim requesting reconsideration. In fact, they'll probably complete the claim before they inprocess the appeal. This is in my personal experience.

It will take several months for the RO to start work on the NOD, even just getting it logged into the system and an appeal started.

DO NOT WAIT any longer. I submitted my NOD by US Postal Service on the last possible day. That hand stamped certified mail receipt has been golden...I've sent at least three copies of it to the RO to prove that my NOD was timely. It took a while, but they found it, acknowledged it, and began to process it.

Meanwhile, the reconsideration claim finalized and now there's a second NOD in on that decision...which is still waiting to be inprocessed after almost three months.

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Roger that Berta, I agree 100%. By the way, the young lady I previously mentioned regarding having much more experience with the DRO Review Process and VBA Court experience, was Carlie. I have sent her an E-mail requesting further clarification. I hope she can shed some light on her average wait times for a DRO Hearing after filing the NOD, as well as current real time DRO Procedures. I know she mentioned the Vet can't record the "Formal Hearing" per VA REGs. I can only reiterate, at my 06/27/14 official Formal hearing, my hearing officer stated that my decision to have an informal hearing could, at my request, return to the Formal recorded and transcribed and that I could record the Hearing . My recorder was already on the table, ready to go. It may have just been my Hearing Officer, but I can't believe a DRO would go against established VA Policy. Time will tell.

Thank you for your concern and input.

Semper Fi

Gastone

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Submitting a NOD does not have any bearing the claim requesting reconsideration. In fact, they'll probably complete the claim before they inprocess the appeal. This is in my personal experience.

It will take several months for the RO to start work on the NOD, even just getting it logged into the system and an appeal started.

DO NOT WAIT any longer. I submitted my NOD by US Postal Service on the last possible day. That hand stamped certified mail receipt has been golden...I've sent at least three copies of it to the RO to prove that my NOD was timely. It took a while, but they found it, acknowledged it, and began to process it.

Meanwhile, the reconsideration claim finalized and now there's a second NOD in on that decision...which is still waiting to be inprocessed after almost three months.

So, the reconsideration could stay active and possibly be ruled on before the NOD gets into the system?

I feel it is close since it was already in pending decision approval before being sent back for C&Ps. Projected completion dates are Sept 9 to Nov 11. We do have very good evidence that was not in the original claim.

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kate,

If your NOD timeline is close - forget the reconsideration and submit an official NOD

and be sure to have evidence you submitted it on time.

To be absolutely truthful with you -

at the VARO level - there is no such reg or law that allows for a reconsideration.

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The BVA "boneyard" where many good claims go to die. You see this all too often. It's a shame. The violin plays the sad saga of a Vet that didn't appeal on time.


CONCLUSIONS OF LAW

1.  The July 1999 RO decision, which denied the Veteran's application to reopen
    the previously denied claim of service connection for asthma, is final.  
    38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.104, 20.302,
    20.1103 (2011).

2.  Evidence submitted since the July 1999 RO decision in support of the claim of
    service connection for asthma is not new and material; accordingly, this claim
    is not reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2011);
    38 C.F.R. § 3.156 (2011).
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So, the reconsideration could stay active and possibly be ruled on before the NOD gets into the system?

I feel it is close since it was already in pending decision approval before being sent back for C&Ps. Projected completion dates are Sept 9 to Nov 11. We do have very good evidence that was not in the original claim.

That's right. The NOD will have little to no bearing on the reconsideration claim. Even if, by some chance, the appeal slows down the claim, you're protecting a very important original filing date. Chances are that it won't. If the claim is close to done, the RO won't even get to your appeal before they decide the claim. Like I wrote before, it's literally taken MONTHS just to get an appeal to show up in eBenefits and receive a letter from the RO that they've got it for action.

Do not trust the RO to get it right this time. They could, though. If you like the decision, you don't have to pursue the appeal any further. The NOD preserves your ability to do something about it while protecting, again, that original filing date.

Do not trust eBenefits when it gives you a projected timeline. That's completely spurious, bogus, wrong...you pick the term you like...but it's completely untrustworthy. Someone could pick it up today and push it through. You could see a decision around Christmas-time.

If you can, file today. Like others have written, sent it certified mail, return receipt requested. It will cost you between $6 and $7 and is worth every penny.

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